The Texas Plan

The US Constitution has been amended 27 times. Each of these times, the method has been that Congress passes the amendment, and then three-fourths of the states must ratify the amendment. This is a slow and arduous process. On purpose.

There is another method available, according to the Constitution. Here’s the entirety of Article V of the Constitution, with the relevant option highlighted:

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a convention for proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

This method, called an Article V Convention, or sometimes a “Convention of States” to propose amendments, is not the same as a “Constitutional Convention.” The latter would be open to rewriting any and all of the Constitution. The Article V Convention would be a call for amending the Constitution in some specific way. It could handle more than one amendment, but only those that the states have called for and have authorized their representatives to discuss. It would be equivalent to Congress presenting a bill to amend the Constitution in one particular way at a time—and if the bill passed, then sending it to the states for the ratification process. Each amendment would require 34 of the 50 states to ratify it before it would take effect.

Texas Governor Greg Abbott
Uncommon Knowledge interview at
Texas Public Policy Foundation

Governor Greg Abbott, of Texas, recently did an Uncommon Knowledge interview, talking about his version, which he calls the Texas Plan. He answers questions about the need for it, the scope, and other concerns.

One concern has been that a convention could get out of hand. But Governor Abbot says that is easily handled by having the states agree beforehand on both the limitation of subject matter and the limitation of time for the ratification process. The states give no authority to deal with issues not previously authorized. And they would agree to a time limit, something like ten years, for the states to handle the ratification.

Governor Abbott explains, “The Texas Plan is not so much a vision to alter the Constitution as it is a call to restore the rule of our current one.” Near the end of the interview, he is quoted from the Texas Plan, saying, “The Constitution itself is not broken. What is broken is our nation’s willingness to obey the Constitution.” So the purpose of all this is to adjust course back to the Constitution.

Governor Abbott’s plan offers these specific possible amendments:

1.       Prohibit Congress from regulating activity that occurs wholly within one State.

2.       Require Congress to balance its budget.

3.       Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.

4.       Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.

5.       Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.

6.       Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.

7.       Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.

8.       Give state officials the power to sue in federal court when federal officials overstep their bounds.

9.       Allow a two-thirds majority of the States to override a federal law or regulation.

In the interview, likely amendments are summarized into three categories: Balanced Budget, Term Limits, and Limiting the Commerce Clause.

Another way to look at the list is addressing the deviations from the Constitution by all three branches of government: legislative, executive, and judicial.

Dealing with the legislative problems (and the Commerce clause), Governor Abbott says this:

What percentage of laws you live under from the federal government are actually even voted on by Congress? The answer is about 6%. About 94% of all the laws, rules, and regulations governing your lives are never even voted on by the people you elect to represent you in Washington, DC. That goes back, and violates a rule that even predates the United States of America Congress. If you go back to John Locke, and maybe even before Locke, it talks about the compact between the people and those they elect to represent them. And the people you elect to represent you are accountable to you. You should be able to hire and fire them based upon what they do.

That’s not how our government works. The laws that we live under are passed by unaccountable, unelected bureaucrats who run the EPA, the IRS—all these alphabet soup federal government agencies. I think that’s wrong, and what I propose is that no agency rule has any binding effect unless and until it is voted on by the United States Congress.

The legislative branch has ceded its lawmaking authority to the executive branch. Governor Abbott says, about these executive branch bureaucracies,

They make the law; they adjudicate the law; and they enforce the law. That was defined by Madison as tyranny itself. Our federal government has transformed into the very definition of tyranny by Madison, by having all three branches of government consigned into one, and that one branch is unelectable and unaccountable.

The solution, he says, it to have every agency regulation null and void until it is passed by legislative vote.

Because Governor Abbott was a state supreme court justice, followed by more than a decade as Texas Attorney General, suing the federal government and standing up to the bullying, he is especially effective talking about the overreach of the US Supreme Court. Here’s part of the interview:

Peter Robinson: The Texas Plan and the Supreme Court. I’m going to quote you from that 92-page document…. “The Supreme Court was for the most part able to control its ambitions for the first 170 years of our nation’s history. But in modern America, the policy preferences of five robed unelected septuagenarians will trump even the most politically popular legislation on any topic—from voting rights to abortion to religion to speech to criminal procedure to guns to healthcare to the environment.” I read that, and I thought, that’s the angriest sentence in this document. It’s the Supreme Court that really gets you, doesn’t it?

Governor Abbott: If you think that’s angry, you need to read this book. [holds up Broken but Unbowed, a book he has just written] I’ve got a lot more in there, where I fully expose the Supreme Court for what it has become….

Let me ask a question:… How many votes does it take to amend the Constitution? The audience knows the answer here. Most people think, well, it’s two thirds of the House and then three-fourths of the states. The fact is, the Constitution is amended every single year by five votes, of five liberal judges, sitting on the United States Supreme Court. If Madison and Hamilton saw that happening, they would never have created the system that we have now.

If we can’t trust our representatives in Washington to do straighten out the mess, then this is a remedy worth trying. Governor Abbott noted that, while it hasn’t been used before to amend the Constitution, it has been tried—at least twice. Once, a century ago, related to the 17^th Amendment, which came within one state of calling for the convention when the House decided to put forth the amendment themselves, rather than be forced. And a similar situation happened during the Reagan administration.

As Governor Abbott says near the conclusion:

It’s never too late. It’s never too large. Never too impossible. That was the attitude that Hamilton and Madison and Franklin and George Washington had. This is America. This isn’t some other country. This is a country where we can do anything—once we realize the necessity of doing it.

He tells the story of one person, who was responsible for getting the 27^th Amendment passed. And, when asked about his own handicap, he used the story as a parallel. Who would have thought that someone could go from a hospital bed, following a freak accident that left him paralyzed, to eventually becoming governor of the twelfth largest economy in the world. He was broken, but unbowed.

In the last Texas legislative session, a bill to propose a convention of the states to amend the US Constitution made it out of the House but not the Senate. This year, since it is a priority of the governor, it is likely to pass. Many states have already passed similar bills, and other states are somewhere in the process.

I’ve been slowly learning about this issue. I recommend the Uncommon Knowledge interview [below] as a primer. And read The Texas Plan. Governor Abbott’s new book Broken but Unbowed: The Fight to Fix a Broken America is likely to be another great resource. And for the past several years, people have been turning to Mark Levin’s book The Liberty Amendments: Restoring the American Republic.

I suggest getting up to speed quickly, and then doing some citizen lobbying to get your state on board for an Article V convention of the states to amend the Constitution—while there’s still an American Constitution to restore.